Right To Counsel in Civil Cases At State Expense

In the United States, there is no general right to state-funded counsel in civil proceedings. The United States Constitution does not provide an explicit right to state-funded counsel in civil proceedings, although the Fourteenth Amendment does prohibit a State from depriving “any person of life, liberty, or property, without due process of law” or denying“to any person within its jurisdiction the equal protection of the laws.” Unlike Gideon v. Wainwright, 372 U.S. 335 (1963), in which the United States Supreme Court held that there must be counsel in criminal cases in which the defendant faces imprisonment or loss of physical liberty, the Court refused to find a constitutional right to counsel in civil cases when first faced with the issue in 1981. In Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the Supreme Court held in a 5-4 ruling that the due process clause of the federal constitution did not provide for the guaranteed appointment of counsel for indigent parents facing the termination of parental rights. Rather, “the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings is to be answered in the first instance by the trial court, subject, of course, to appellate review.”

This basic framework was continued in 2011 when the Supreme Court decided Turner v,Rogers, 131 S.Ct.2507 (2011), which held that a parent jailed for civil contempt due to failure to pay child support is not categorically entitled to counsel when (1) the state provides other procedural safeguards; (2) the contemnor’s opponent is neither the state nor represented by counsel; and (3) the matter is not “unusually complex.” The court also determined that there is not a presumption in favor of counsel when physical liberty is at stake. However, the Court did hold that the state must provide four safeguards to ensure due process. These were: (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay.

No state constitution explicitly sets out a state-funded right to counsel in civil cases. Virtually all state constitutions have due process and equal protection clauses whose wording may differ from the federal constitution but whose scopes have often been interpreted to be similar to or even broader than the federal constitution’s provisions. These provisions have been the primary legal framework for asserting the right to counsel in civil cases at state expense. Many state constitutions have “access to court” provisions,and some have provisions incorporating English common law rights. In limited categories of cases, some state legislatures have enacted statutes requiring state-funded counsel to be appointed for one or more parties, and the highest courts in some states have judicially decided that state-funded counsel should be provided as of right to some parties. These state-funded counsel provisions or court rulings are generally in the family law area and civil commitment. There are a few federal statutory requirements for appointment of counsel in civil cases, but these are very limited. Thus, in the vast majority of civil cases, there is no constitutional or statutory right to state-funded counsel.

The National Coalition for the Civil Right to Counsel, a coalition of over 240 participants from 35 states and housed at the Public Justice Center in Maryland, has focused on changing this legal framework through supporting litigation primarily in state courts, pursuing state statutory reform, and promoting pilot projects. These efforts are paying off. Many new state laws and court decisions are establishing the right to counsel in a range of cases, though primarily in the family law area. Significant efforts have been made to develop more expansive state statutes that provide for the right to counsel in civil cases at state expense in situations that go far beyond the few areas that now provide for such counsel. The California Access to Justice Commission developed a Model Statute in 2007, and the American Bar Association developed a Model Statute in 2010. In 2010, the Maryland Access to Justice Commission began a process that led in 2013 to Maryland legislation that created a statewide task force to explore civil right to counsel issues.

In 2017, New York City and Washington D.C. enacted right to counsel legislation that would provide a right to counsel for low-income families in eviction proceedings who are at or below 200 percent of the poverty level. Providing counsel will happen in New York City by increasing the City’s eviction legal aid spending by $93 million (on top of the $60 million the Mayor invested in 2014), which will occur over five years. In doing so, NYC will become the first jurisdiction in the country to provide a right to counsel in housing cases, making this an enormous step forward for the civil right to counsel movement in the United States. In May2017, the Washington, D.C. Council approved a budget that sets aside $4.5 million for a program to offer free legal aid to tenants facing eviction. Other cities, including Philadelphia, are also setting up right to counsel projects in eviction proceedings.

In several states, advocates have turned to setting pilot projects that provide counsel in a category or categories of cases. Massachusetts began pilot projects in 2009 to explore the impact of full representation in eviction cases. According to a March 2012 report, 12 both pilot projects prevented evictions, protected the rights of tenants, and maintained shelter in a high rate of cases. In one pilot, two-thirds of the tenants who received full representation were able to stay in their homes, compared with one-third of those who lacked representation. Even those represented tenants who moved were better able to manage their exit on their own timetable and their own terms. Full representation therefore allowed more than two-thirds of the tenants in this pilot to avoid the destabilizing consequences of eviction, including potential homelessness. Represented tenants also received almost five times the financial benefit (e.g., damages, cancellation of past due rent) as those without full representation. A collaboration of legal services programs in Massachusetts recently launched a new pilot project to provide legal help to people facing evictions in two additional counties.

In 2009, California adopted the Sargent Shriver Civil Counsel Ac. Under that Act, the California Judicial Council oversaw ten pilot projects in seven counties for appointment of counsel in civil cases including housing, child custody, and probate guardianship. The projects started in fiscal year 2011-2012. The legislation also required data collection and evaluation of both the civil representation and court-innovation components in order to provide a basis to revise and extend the legislation. In June 2016, the Governor signed legislation making the Shriver pilots permanent. In July of 2017, The Judicial Council of California released the Evaluation of the Sargent Shriver Civil Counsel Act prepared by NPC Research of Portland Oregon and the recommendations of the Shriver Civil Council Act Implementation Committee. (Endnote 13) The evaluation clearly supported the important role of attorneys in representing their clients, reaching settlements, improving the durability of court orders and helping ensure more efficient use of judicial resources. Attorney resources are used most effectively with well-designed triage systems. Such systems are critical to the smooth functioning of the continuum of service. The evaluation also showed that court-based opportunities for settlement discussion, including mediation and settlement masters, are an effective way to resolve cases before trial, benefiting all parties;the improved use of technology, including expansion of e-filing, helps facilitate the efficient handling of cases; and expanded court-based self-help centers are a critical element of the continuum of service.

Another example of a pilot was a multi-year, collaborative study entitled The Longer-Term Influence of Civil Legal Services on Battered Women, funded by the National Institute for Justice and operated by the University of Iowa and Iowa Legal Aid. It focused on the impact of providing counsel for victims of intimate partner violence in protection order,custody, child support, and marriage dissolution cases. The study found that after being provided counsel women reported substantially less physical violence (a decrease of around 75 percent); significantly decreased symptomatic responses to traumatic stressors,including intrusive thoughts, avoidant behaviors, hyperarousal, and depressive symptoms;and improved economic situations. Women reported a statistically significant increase in the adequacy of their family resources. Women also reported a decrease in difficulty living on their current income, an increase in monthly income, and a decrease in the number of assistance resources used.